EEOC’s New Stance Equal Remedies for Undocumented Workers

Once again the Equal Employment Opportunity Commission is sending a clear message that workplace discrimination will not be tolerated and that employers who violate civil rights laws must pay the consequences.

In an enforcement guidance issued October 26, 1999, the EEOC modified its position on remedies available to undocumented workers under federal employment discrimination laws. With few restrictions, says the EEOC, unauthorized workers are entitled to the same remedies as any other worker—including back pay and reinstatement.

The EEOC’s new position parallels that of the National Labor Relations Board with respect to discrimination on the basis of union activity. It applies to all of the laws enforced by the EEOC—Title VII, the Americans with Disabilities Act, the Rehabilitation Act, the Equal Pay Act, and the Age Discrimination in Employment Act.

EEOC’s prior position.
Since 1989, the Commission’s position had been that unauthorized workers were not entitled to reinstatement or to back pay for the period when they did not work because of a discriminatory failure to hire or termination. The EEOC reasoned that compliance with immigration laws forbidding the employment of undocumented workers was a legitimate nondiscriminatory reason to not employ unauthorized workers.

EEOC’s new position.
Workers’ undocumented status is never a justification for discriminatory working conditions or a failure to promote. The EEOC says it will no longer collect or evaluate evidence regarding a worker’s eligibility-to-work status. Rather, unauthorized workers will be presumptively entitled to reinstatement; however, if an employer knows that a worker who was hired after November 6, 1986, is unauthorized, reinstatement can be conditioned on the worker being able to satisfy verification requirements of the immigration laws within a reasonable time. Back pay is available to the extent it does not conflict with the purposes of the immigration laws. The EEOC construes this as limiting back pay relief only where the worker is unavailable for work by virtue of being out of the country.

Why the shift in policy?
A decade’s worth of legal developments is behind the Commission’s decision to change gears. All of these developments focus on deterring discrimination as the central goal and recognize that any failure to penalize employers who discriminate undermines that goal. If employers are not held responsible for discrimination against unauthorized workers, it could create an incentive for unscrupulous employers to engage in unlawful workplace conduct.

Mixed motive and after-acquired evidence may limit remedies.
A worker’s unauthorized status can be a legitimate reason for a mixed motive or after-acquired evidence defense. Employers who knowingly employ unauthorized workers would not benefit from either of these defenses, however.

A mixed motive defense involves proof that an employer would have taken the same action even if discrimination were absent. In mixed motive cases, employers can be liable for attorney’s fees and injunctive relief but are not liable for reinstatement, back pay, or any damages.

After-acquired evidence refers to evidence acquired after a discriminatory act that would have caused the employer to take the same adverse action. In after-acquired evidence cases, a worker would not typically be entitled to reinstatement, and the period during which back pay accrues would be cut off as of the date that the employer discovered the unauthorized status.

Retaliatory investigation can trigger liability.
Unauthorized workers are particularly vulnerable to threats to report them to the Immigration and Naturalization Service. In every case in which the employer asserts that the worker is unauthorized and appears to have acquired that information after the worker complained of discrimination, the EEOC will determine whether the information was acquired through a retaliatory investigation. If the investigation was retaliatory, the employer will be liable for monetary damages without regard to the worker’s actual work status. Appropriate equitable relief is also available.

Cite: Policy Guidance: Remedies Available to Undocumented Workers under Federal Employment Discrimination Laws; October 26, 1999. Appendix B of Section 622, Volume II of the Compliance Manual.

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